Judge awards $2.5 million for suffering 'hate speech at its worst'

THE CANADIAN PRESS

A self-styled online media personality whose websites frequently air anti-Muslim content has been ordered to pay the owner of a prominent Middle Eastern restaurant chain millions of dollars after publicly accusing him of funding terrorism.

Ontario Superior Court Justice Jane Ferguson ordered the man to pay a total of $2.5 million in damages for defamation to the owner and founder of the chain.

In the videos, shot in 2017, the man made a series of incendiary statements including a claim the restaurant owner was an “economic terrorist” with backing from the Pakistani spy agency.

He also alleged restaurant policy barred staff from admitting anyone who wasn't a “jihadist.”

Ferguson says the man's words amounted to hate speech that called for particularly strong condemnation from the court.

“In this fractious 21st century — where social media and the internet now allow some of the darkest forces in our society to achieve attention — (issues raised by the case) are numerous and profound, and their impact extends well beyond the borders of this country,” she wrote in her decision.

“Motivated by ignorance and a reckless regard for acceptable norms, [the defendant's] behaviour reflects a contempt for Canada's judicial process, an abuse of the very freedoms this country affords them and a loathsome example of hate speech at its worst.”

In an interview with AdvocateDaily.com, Toronto defamation and appellate counsel Brian Radnoff says the award is one of the highest in Canadian defamation history and is a reflection of the reputational and financial hit the plaintiff’s business took as a result of the defendant's actions.

“The plaintiff was able to prove he lost a significant contract because of the defendant’s statements,” says Radnoff, partner and commercial litigator with Dickinson Wright LLP. “If the same thing happened to a high-profile individual who couldn't point to any actual business losses, it's likely the damage award would have been much less."

Radnoff, who was not involved in the matter and comments generally, says the chances are low that the plaintiff will be able to collect the $2.5 million damage award, which is why the permanent injunction order is likely more valuable.

“The plaintiff’s reputation is vindicated because there’s now a public decision saying that this was defamation but in terms of collecting the actual damages, that's probably going to be difficult,” he tells the legal wire service. “Justice Ferguson ordered a permanent injunction preventing the plaintiff from continuing the conduct complained about against the plaintiff. This is what's really valuable because even if you have an impecunious plaintiff, the injunction order can be enforced through civil contempt proceedings.”

Radnoff, who has significant experience with defamation litigation, says if the defendant breaches that injunction, the court has very wide latitude about what is an appropriate remedy, including jail time.

“Where you have a damage award that's unlikely to ever be paid, you're in the good position to get an injunction as this plaintiff did. That has real value because now the plaintiff has a mechanism to stop this person from ever trying to do this again.”

The defendant did not respond to a request for reaction to Ferguson's ruling, and the paralegal who represented him during the defamation suit could not be reached for comment.

According to Ferguson's decision, the online celeb and another man shot the video footage on July 20, 2017, while a fundraiser for Prime Minister Justin Trudeau was taking place at the restaurant's flagship location in Mississauga.

Ferguson said the men repeatedly tried to disrupt the event and made a number of defamatory statements about the restaurant and the owner who founded it in 2007 and has seen it expand to roughly 40 locations across Canada.

The footage yielded at least eight event videos that contained a number of what Ferguson deemed to be defamatory statements.

The videos also featured the restaurant's facade and logo and a photograph of the owner altered to present him with blood on his hands, Ferguson wrote.

When served with notice of the defamation suit, Ferguson contends the man doubled down on his claims in a series of new videos in which he described the restaurant owner as a "radical Muslim'' who "hates white people.''

Tensions escalated in April 2018, she wrote, when the man allegedly approached the restaurant owner while he was at a Mississauga shopping mall with his children aged between 13 and four.

The resulting encounter, briefly posted to the man's online platforms, left the plaintiff's youngest child waking in the middle of the night asking about "the scary man who hates his dad,'' Ferguson said in her decision.

The other man who appeared in the videos and who was originally named in the defamation suit saw the action against him dismissed after he issued an "unqualified apology'' for his words and actions.

In contrast, Ferguson alleged the man repeatedly failed to co-operate with the court process and cast public aspersions on both the case and the judge overseeing it.

Ferguson awarded damages based on the plaintiff's standing in the community, the seriousness of the defamatory statements, the extent of their publication, the lack of an apology and the defendant's conduct.

She accepted the restaurant owner's contention that both his business interests and personal reputation were impacted by the man's baseless claims.

"The serious damage to the plaintiffs' reputations from the defendant's repeated and widely disseminated false statements ... may never be able to be undone,'' she wrote. "As recognized by the Court of Appeal, given the 'extraordinary capacity' of the internet to replicate defamatory statements 'almost endlessly,' the truth rarely catches up with a lie.''

In a statement, the plaintiff said Ferguson's ruling is a triumph over racism and hate speech."When someone falsely calls you a 'terrorist' simply because you are a Muslim, that is Islamophobia,'' he said. "This judgment sends a clear message that such Islamophobic comments are wrong and defamatory. I feel vindicated. This decision is an important step towards demonstrating that those who are spewing hate online are going to have to pay.''